Fox v M.A. Kent & Associates
[2001] HCATrans 371
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A11 of 2001
B e t w e e n -
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Appellant
and
DALJIT SINGH
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON TUESDAY, 14 AUGUST 2001 AT 10.17 AM
(Continued from 13/8/01)
Copyright in the High Court of Australia
GLEESON CJ: Yes, Mr Basten.
MR BASTEN: Thank you, your Honour. I was going to follow your Honour the Chief Justice’s invitation and turn to the House of Lords decision in T. Just before I do that, may I indicate where the conclusions we seek to draw from the material that I will take your Honours to. In substance, there are three aspects to an offence of the kind that we are considering. There is the motive of the actor; there is the objective nature of the crime; and there are the political ends which may be served by the activity – the latter to be understood, we would submit, in the context of the political system of the country concerned.
What we seek to say is that each of those elements is a relevant factor to be considered by the Tribunal in determining whether this is a serious non-political crime, and that there have been a number of different approaches which have been adopted in different countries, all of which tend to give emphasis to one or other element - perhaps greater emphasis to one or other element than to others. May I just, by way of identification, refer your Honours to the discussion in the article in Garcia-Mora, “The Nature of Political Offenses: A Knotty Problem of Extradition Law”, in volume 48 of the Virginia Law Review, which I provided to your Honours yesterday, at page 1239, where Professor Garcia-Mora identifies at the bottom of the page distinct approaches adopted in Anglo-American law, French law, and Swiss law.
I will, in due course, note the material ‑ perhaps I should note it now in relation to the Swiss approach, because it is referred to by Lord Mustill in T’s Case, although his Lordship does not discuss it. In our submission, there is merit to be derived from the Swiss approach. That is dealt with by the professor at page 1251 and following, and the two elements of the test of political motivation, summarised firstly at the top of page 1254, which discusses the predominance element, namely, that in the political offence:
the political element must predominate over the common crime -
which excludes acts involving atrocity or barbarity “completely out of proportion to the end sought”. At the top ‑ ‑ ‑
KIRBY J: Where does one get that notion? I see it repeating, but where does one get that notion out of the Convention?
MR BASTEN: The proposition I was going to put to your Honours was that there has been a development of principle, which perhaps achieves this goal: that the concept of a non-political crime and its obverse, a political crime, is more limited or more restricted than simply a crime with a political element or an offence of a political character – to use the extradition law terminology. It is limited by these notions of evaluating the extent to which the crime is, as it were, atrocious or grossly disproportionate to the goals which are sought to be met. It does assess the goals in terms of the circumstances in the country in question, and it does assess elements of motivation, to see whether the crime can be characterised in the mind of the actor as purely political or as involving some element of private motivation.
KIRBY J: I wondered whether the explanation of it was that, reading the Convention as, in a sense, an imposition and an obligation on receiving countries, that it has been read into the Convention this way because it is recognised that it would not be reasonable or rational to expect a receiving country, even for a refugee, to receive a refugee who has committed such abominable crimes, of great violence and so on, and that therefore one can read it in that way. But it is not in the text; and I just wonder how judges, sitting in their judicial seats in relative comfort, have added this gloss on the – which seems a little unrealistic when you compare it to the reality of so-called freedom struggles or terrorism, before the terrorists become respectable statesmen.
MR BASTEN: Yes. May I say, perhaps, three things in response to that, your Honour. Firstly, we do not suggest that there are any fine judgments about these matters to be made. We say, really, that these are factors which are to be evaluated, but one does not make a fine judgment about how appropriate we would consider a particular action in relation to a political goal. It is a much more flexible and imprecise test than that. That is why, I think, in some of the judgments, there is reference to “grossly disproportionate” rather than a more precise formulation.
The second thing I was going to say was that one turns to material such as Professor Garcia‑Mora, because he is writing at a time closer to the date of the Convention – he is writing in 1962 – a decade later, perhaps - in relation to extradition law as at that time, and there is some support for the proposition that, in part, this exception was designed to pick up and allow extradition and refugee law to fit conveniently together, so that there was no obvious inconsistency. One should not, perhaps, take that too far.
The third point I was going to make was that, as noted, I think, by Justice French in Dhayakpa v Minister for Immigration & Ethnic Affairs (1995) 62 FCR 556, a case which is contained at the end of our volume, under the tag “Respondent’s Cases”. One purpose of this exception is to permit a country to reject someone who would be socially unacceptable to them, in a gross sense. So that there is – and this perhaps picks up what your Honour was putting to me – a sense that the imposition on the country of refuge should be subject to a qualification in this regard. I suppose all of those factors must be considered in order to understand why one comes to, perhaps, what is a fairly complicated approach to determining the nature of a political offence.
Your Honours, might I then turn to the House of Lords in T v Home Secretary [1996] AC 742, which is at tab 7 of our bundle. It is perhaps convenient to start with the opinion of Lord Lloyd. Your Honours will no doubt have noted that at 752, Lord Keith of Kinkel and Lord Browne‑Wilkinson both agree in the reasons given by Lord Lloyd of Berwick. His Lordship’s opinion commences at page 776. Might I, perhaps, use his Lordship’s exposition of the cases to avoid going to any of the material. We have supplied copies for your Honours’ use, and I have referred to them in the written submissions, but we need not, perhaps, take your Honours to them directly; they are summarised here.
Perhaps I should note two points, by way of background. Firstly, at letter D on page 777, your Honours will see that at the hearing the Secretary of State had:
conceded that if the Convention applied then Mr. T. had a valid claim for asylum –
That, perhaps, distinguishes the way this case was approached from that before their Lordships. The second point of background that one might note is that the critical passage in the Tribunal’s reasons which their Lordships were considering appears at the bottom of that page. At letter G, there is a sentence which states:
It seems to us –
this is the Tribunal speaking –
however, that to characterise indiscriminate bombings which lead to the deaths of innocent people as political crimes so as to remove them from the exclusion clause would be against common sense and right reason. It cannot have been the intention of the Convention to accord protection to those who engage in such activities –
That was said to involve an error of law, in a ground which is identified on the following page a little above letter B on the basis that:
because the two incidents in which Mr. T. was involved would ordinarily be described as terrorist activities, it necessarily followed that the crimes were non-political –
It was that reasoning of the Tribunal which was said to be in error, and that bears some similarity, as we would apprehend it, to the complaint made about the reasoning of the Tribunal in the present case.
Returning to the reasons itself, though, Lord Mustill, to whom I will come in a moment, thought that the reasoning of the Tribunal was correct, and was preferable to that which was adopted by the Court of Appeal, which is summarised at page 778, and indeed, followed by Lord Lloyd. I will not, obviously, read to your Honours that passage from the Court of Appeal, but that is the beginning of the discussion in Lord Lloyd’s opinion. Your Honours, he commences with a consideration of the English cases involving extradition, commencing at letter D on page 779. We noted in our written submissions that Schtraks’ Case, which is dealt with at letter H on that page, was applied by the High Court in an extradition case, The Queen v Wilson, Ex parte Witness T (1976) 135 CLR 179. I need not take your Honours to that, and perhaps I need not take your Honours through the rest of that analysis of the English cases.
At page 782, his Honour deals with some American case law. Again, it is all, we say, a very helpful analysis. In re Doherty 502 US 314, which is referred to at letter F to G on page 782, was a case which ultimately went to the Supreme Court, but as appears at page 319 – this is a 1992 decision, some eight years later – Mr Doherty had by that stage given up his challenge to extradition. It was being fought on a different basis, so that, although the Supreme Court did consider it, it was not on this ground. May I also note in passing that Atta’s Case, which is discussed at pages 783 to 784, although a District Court case, was affirmed by the Second Circuit Court of Appeals in the decision which is referred to at letter C on 784. We have not given your Honours a copy of that because it says no more than what is set out by Lord Lloyd, and a confirmation of the trial judge’s reasoning.
Your Honours, at page 784, at letters E and following, there is a discussion of McMullen’s Case, which was the only Refugee Convention case which dealt with Article 1F(b). We provided to your Honours’ associates copies of the legislation in relation to England and Canada, to which I need not take your Honours. We will make available, and, if we might, after the hearing today, the American legislation. It was not readily available in a useable form overnight. I apologise for that. But the application discussed in McMullen is perhaps sufficiently outlined at the top of page 785.
GLEESON CJ: I am looking at what Judge Wallace said, on page 784, letter G:
The political element should in principle outweigh the common law character of the offence –
You usually weigh things that have commensurate values. How do you compare the weight of a political element and the common law character of an offence?
MR BASTEN: We would understand that to be a predominance test, in substance, namely, that where there may be mixed motives in carrying out an act, it is sufficient or necessary that one predominate over the other. That obviously does not take the matter, perhaps, very much further than restating the proposition.
KIRBY J: Is it just really stating the characterisation problem, that when you come to characterise it, you will characterise it not as a common law, private motivated, private vengeance – but as a political, or non-political, offence. It may be that is what he is trying to say. I mean, judges have struggled with how you characterise things forever, and in the end, you get to a point where you just say: well, that is it.
MR BASTEN: Yes, that is so. Your Honour, I do not think that was Judge Wallace, indeed, that was ‑ ‑ ‑
KIRBY J: Goodwin-Gill, is it?
MR BASTEN: That is actually Goodwin-Gill being quoted directly, yes. And we would ‑ ‑ ‑
KIRBY J: Is there something more up-to-date than this 1962 analysis of the decisions? I mean, does Professor Goodwin-Gill give an analysis of the trend of authorities since 1962, up to the present, before this provision of the Convention?
MR BASTEN: No, he does not, your Honour. We have provided – and perhaps - I was going to go to it in a moment – but we have provided a copy, from Professor Shearer’s book, “Extradition in International Law”, the chapter dealing with political offences. But that is, unfortunately, 1975, I think, and so still a little dated.
KIRBY J: There is nothing in the recent editions of Professor Goodwin‑Gill’s text that deals with the matter?
MR BASTEN: No. That is really all there is, and we, with respect, do not find that terribly helpful, that passage. The more useful discussions are in Professor Aughterson’s book on extradition law in Australia which has a recent chapter on political offences: E. P. Aughterson, “Extradition: Australian Law and Procedure”, 1995, and the chapter is one we have not made available to your Honours, but it is chapter 5. Our view was that it probably did not take one any further than Lord Lloyd’s speech which summarises the law in a number of countries.
KIRBY J: And you have done a search of the articles? I mean, there is a whole journal on refugee law. There has been no – it seems curious, given that there is this House of Lords decision, there is a Canadian decision, and there are United States decisions on the matter, that there has not been some analysis of them.
MR BASTEN: There has been, your Honour, the question is: how helpful? There have been a number of articles published, perhaps not as many as one would expect, and certainly, not many dealing with the Refugee Convention precisely, because, apart from McMullen’s Case, which is referred to there, and apart from Doherty – which is really on a different point – it has not gone up to the US Supreme Court, except in Aguirre-Aguirre - to which I have taken your Honours - in 1999. It has not gone to the Canadian Supreme Court, except in a dictum in that case of Ward v Canada, to which I will give your Honours a reference shortly, and a decision called Pushpanathanv Minister of Citizenship and Immigration [1998] 1 SCR 982, which was dealing with Article 1F(c), not (b), and which I think would probably not give your Honours great assistance in relation to the non-political crime issue.
KIRBY J: Well, now, that means that either we have to try and work out this matter for ourselves or we have to look to you to help us. Is that document you handed up yesterday your best attempt to pull together what you say are the threads of the authority of other courts, and the concepts that we have to deal with here?
MR BASTEN: Yes. It is my best attempt, your Honour. It may not be adequate. At the end of the day, I think the proposition that we are seeking to support is that unless one can say, in substance, that the Tribunal has excluded from consideration a matter which it should have considered, then this Tribunal dealt with the matter in an appropriate way, having regard to these authorities.
KIRBY J: I know you say that, but there seem to me to be two questions in this case. Question No 1 is the procedural-type question, as to whether it was any business of the Full Court or of the primary judge to be dealing with the matter at all, given what a point of law means. And I need more help from you on that.
MR BASTEN: I was going to come to that, if I may.
KIRBY J: And secondly, and only if you get through that, do you get to what the Convention means. But in a sense, they are interrelated, because unless you have a concept of what the Convention is, you cannot test whether or not the Tribunal and the decision-maker went wrong in their approach to the task of construction that was before them.
MR BASTEN: Yes. Well, with respect, I accept all of that. The question about what the Convention means, though, may not be satisfied by some precise description of what does or does not constitute a serious, non‑political offence. That is ‑ ‑ ‑
KIRBY J: But that seems a shame, when this matter has come to this Court, and here are thousands of decision-makers around Australia, making these decisions, for the Court, if it can, to give some guidance on the principle that is to be applied, much as the House of Lords did in T. Because, after all, we have to consider our role in dealing with the administration of the Act, by reference to this particular case.
MR BASTEN: Yes. Might I say two things: firstly, perhaps I underestimated what Professor Goodwin-Gill has dealt with. At tab 22, we do extract a little bit more than is contained in Lord Lloyd’s speech. Secondly, your Honour, we do not for a moment seek to dissuade the Court from that exercise. The question ultimately is: what is the result of the inquiry? And Lord Lloyd’s conclusion, at 786 to 787, is an essentially negative one. It says:
A crime is a political crime for the purposes of article 1F(b) of the Geneva Convention if, and only if –
two factors are satisfied. Now, that is not a definition. His Lordship refers, on the next page, at letter D, to “definition” in inverted commas. He does not purport to ‑ ‑ ‑
GLEESON CJ: Well, I would not, if I were you, pass over what appears at letter C. It seems to me a rather important paragraph.
MR BASTEN: The “description of an idea”?
GLEESON CJ: The reference to what Lord Radcliffe said, and the fact that this is a question that has been around for more than 100 years.
MR BASTEN: Yes.
GLEESON CJ: I thought the concluding lines of that paragraph were fairly significant.
MR BASTEN: We accept all of that, your Honour. I was going to take it in two stages, as it were. Firstly, it is a negative statement that his Lordship makes, perhaps sufficient for the purposes of his case. Secondly, he does not say that it is a definition. But thirdly, it obviously gives very useful guidance in determining how one approaches these questions and the correct questions to ask, for an administrative decision-maker. And we would think that each of the propositions which Lord Lloyd sets out at the top of page 787 is, as it were, his Lordship’s response to what is then said to be required in the following paragraph. And we would accept that it is an appropriate response.
GLEESON CJ: But your proposition – which may be right – as I understand it, appears to be that the vaguer the concept, the more difficult it is to upset the decision-maker’s decision, unless you can point to some specific error.
MR BASTEN: Yes. Well, that ‑ ‑ ‑
KIRBY J: Professor Davis would criticise that as being the negation of the rule of law, which our Constitution upholds: that you cannot say you are immune from error of law and supervision by a court of law simply because you obfuscate and do not identify the principle you are applying. And when you then come to a federal court in this country, the federal court is entitled to scrutinise what the administrator has done - if it have power over points of law - and determine whether or not error of law is shown.
MR BASTEN: I need to distinguish, and perhaps I am not doing so adequately, the two questions, namely, the statement of principle which would guide an administrative decision-maker, which will no doubt follow from your Honour’s judgment; and the question about whether there has been a failure to apply relevant principle by the Tribunal in the particular case, and those are obviously questions which need to be separated. The second point that I was going to suggest is that in the succinct statement in that paragraph at the top of page 787, there are concepts involved which can only be fully understood against the background of what his Lordship had been describing.
For example, the first requirement is that “political purpose” is given an element of definition, namely, it is an act:
with the object of overthrowing or subverting or changing the government of a state or inducing it to change its policy –
Now, if one goes back to the discussion of the incidence test, it used to require a state of, in effect, rebellion or revolt, under American and English law, before one reached that level of political purpose. That is obviously a much broader test. Secondly, his Lordship says there must be:
a sufficiently close and direct link between the crime and the alleged political purpose ‑ ‑ ‑
KIRBY J: I wonder if that is a completely correct statement, because, if you remember, in Ibrahim, we were told that in Somalia, there is no government. It is a complete breakdown of government - and yet it could still have a political purpose. Somebody could have the political purpose of wanting to create a government.
MR BASTEN: Indeed.
KIRBY J: So one has to be a little cautious. It all demonstrates how cautious one must be with any elaboration that goes beyond the text of the Convention. But some guidance has to be given on how this is to be applied in a particular case.
MR BASTEN: Whether it is going beyond the text of the Convention or going beyond what is needed in the circumstances of the particular case may be a question, I suppose, but it does not seem – one must set what your Honour says about the caution against what was said by Lord Radcliffe in Schtraks’ Case, which is referred to in the following passage.
GLEESON CJ: We are not sitting here inventing the wheel. This is an issue that was addressed, it appears, by John Stuart Mill, in the middle of the nineteenth century.
MR BASTEN: Yes. And the comments he made at the time were purportedly rejected, but in large part accepted in Castioni’s Case, I think it was.
KIRBY J: There is, however, an important difference, and that is the accretion in weapon power in the time since John Stuart Mill. I mean, they had guns there, but now we have AK-47s and we have dynamite, and we have all sorts of means of doing terrible devastation to human flesh. This is now, whether we like or not, part of the armoury of political crime; they are terrorists until they win.
MR BASTEN: Indeed. The difficulty of drawing distinctions here is apparent from the use of the term “terrorist”, too. Your Honour’s point is ‑ I think many members of the Court made it yesterday – is that today’s terrorist may be tomorrow’s freedom fighter. The complaint of Lord Mustill in relation to Lord Lloyd’s approach is that it requires inappropriate tests to be applied in a context where their application does, as it were, beg a description as the rule of law; they are too vague. What his Lordship ends up preferring, though, is the language of terrorism – and that appears at page 772, at letter E. Yet one must accept that to talk of an activity as “terrorist”, in some respects says nothing about whether it is a political act or not, and most acts would be described by terrorists as political, presumably.
Your Honour says that Somalia may demonstrate a circumstance where there is no government, and therefore one must adjust the terminology. In a sense, that may not be so, if one follows the history. In Meunier’s Case, the anarchist who threw the bomb had a government as an enemy, but he had no political motive, in the terms in which extradition law was being developed; so that there are quite technical distinctions being drawn in an attempt to, as it were, produce a compromise between principles which are inherently in conflict. One, the unwillingness to allow people to be extradited for political purposes of another country; the other, not to be seen to be in harbouring or infringing against the protection which all states seek to enjoy against violent attacks on their security.
KIRBY J: Somehow we have to find the line in the words of, I think, your submissions that permit refuge to be given to the assassins or attempted assassins of Hitler and not Mr McVeigh, or Oswald, the assassin of Kennedy, because one would infer that the Convention is for the former but not for the latter. But I do not know how one formulates a criterion that captures one but not the other.
MR BASTEN: Yes.
CALLINAN J: Sometimes you can only know about these matters much later. I mean, take the revelations that have emerged about what Marshal Stalin did. They were not generally known in the 1930s when they were being perpetrated. But why should we not start our consideration with at least a disposition against violence. The Oxford English Dictionary defines polity as “the art or science of government”. The notion of violence seems to me to be antipathetic to politics in any pure sense. I mean, there may be cases in which, perhaps, violence is justified but it seems to me, at this stage anyway, that the starting point is a disposition against it.
MR BASTEN: Yes. With respect, we accept that, your Honour. It is hard to formulate a precise distinction between circumstances where one might wish to say that violence was acceptable in terms of the Convention and that which it was not, and levels of violence are, of course, factors and killing someone is, one would think, a very serious element of violence. Killing people indiscriminately in a group, perhaps even worse.
CALLINAN J: It will go on forever, as it seems to be, in Northern Ireland.
MR BASTEN: Or the Middle East.
CALLINAN J: One side seeking retribution against the other, as the Chief Justice said yesterday. Who started it will be lost in the mists of time.
MR BASTEN: I think his Honour gave the example of pay‑back as an example. But in some respects pay‑back is quite different because it is often undertaken under traditional rules which do prevent that cycles of violence continuing.
Your Honour, I am going away from T’s Case, but may I interpose by a reference to Gil v Canada, the case which is at tab 11 and which really is, I think, the most - it is the only decision of a Superior Court in Canada which has dealt in detail with this particular question. It is in 119 DLR (4th) 497, and at page 517 Mr Justice Hugessen, in a passage which ends with the need to distinguish, as your Honour Justice Kirby says, between the plotters against Hitler and the assassin of Kennedy, commences with the proposition at letter e in the middle of the page, and perhaps I should just note, at letter a his Lordship has rejected the proposition that one should weigh the possible persecution against the gravity of the crime. Then at letter e he gives the other side of the coin:
Where it is appropriate to use a proportionality test under art. 1F(b) is in the weighing of the gravity of the crime as part of the process of determining if we should brand it as “political”. A very serious crime, such as murder, may be accepted as political if the regime against which it is committed is repressive and offers no scope for freedom of expression and the peaceful change of government or government policy. Under such a regime the claimant might be found to have had no other option to bring about political change. On the other hand, if the regime is a liberal democracy with constitutional guarantees of free speech and expression . . . it is very difficult to think of any crime, let alone a serious one, which we would consider to be an acceptable method of political action.
Perhaps picking up your Honour Justice Callinan’s point and we would, with respect, accept that proposition as being ‑ ‑ ‑
KIRBY J: The difficulty of it, in my opinion, is this, that one would say that India is a liberal democracy. It has a constitution, it has a parliament, it has the biggest democratic election in the world, but the fact is that those who seek change in one little part of India, say Kashmir, or say the Punjab, have really no opportunity, effectively, to secure that change within that paradigm. Now, you might say, “Well, they just have to accept it”, but the history of the world is that people just do not accept it. One could say the same thing about Ireland or Palestine.
MR BASTEN: One moves, of course, continually and naturally between the general and the specific. Might I just say, in relation to what your Honour has put to me, that there is an assumption, perhaps, there, that in the circumstances of this particular case, one should accept that violence is acceptable. If one reads some of the material in the supplementary book, and there was no finding about this, but it would suggest that the KLF was a small element of the Sikh population, the vast majority of whom were not agitating for a separate country. As a matter of fact, if that is correct, then even within their own populations this group may be seen as anti‑democratic terrorists. These are very difficult questions to determine. But I say that, really, because one is at the interplay between the general and the specific in the case.
Might I then return, just briefly, to T, because I wanted to note two other propositions which are articulated by Lord Mustill. Both Lord Mustill and Lord Slynn have difficulties with the concepts of remoteness and proportionality. Lord Slynn of Hadley, at page 775, expresses in the middle of the page those concerns, but they are developed in more detail in Lord Mustill’s opinion and, in particular, from the bottom of page 768 through to page 769. The last paragraph on 768, his Lordship, having dealt with “remoteness” and Lord Diplock’s test in Cheng, says:
This negative opinion still leaves open the necessary connection between the subjective impulsion of the offender and the mental element of the offence. In recent years new criteria have been proposed. The first is one of proportionality.
Now, he dismisses one aspect of it, to which I need not take your Honours. At letter B on the next page, he discusses:
indications in the literature that the concept originally applied to what are called “delits complexes” where the same crime is impelled by more than one motive. So understood, the doctrine propounds only that the dominant motive determines the political character of the offence. This is rational but of no help here.
He then refers to McMullen, but at letter G he comes back to this concept in the second sentence of the paragraph:
If the apparent disproportion between ends and means is used simply as evidence that the political motive has been fuelled by some other element, such as personal malice -
et cetera -
this is no more than a version of the different proportionality doctrine to which I have already referred which requires a comparison between the political and non political elements of the motivation.
Now, we, with respect, have no difficulty with that proposition and we do not see it as being in conflict with any thing in Lord Lloyd’s opinion and we would also, at a different level, say, with respect, that that is an approach which has been adopted by the Tribunal in its characterisation exercise in the present case. Then at page 770, Lord Mustill discusses proportionality in a different sense when it is being used to assess the acceptableness of the political instrument of assassination which, at letter C, in relation to Castioni, he said in western democracies would be “anathema”. That approach, in substance, his Lordship rejects.
At 771F, he turns to consider the use of the terms “atrocity” or “terrorism” as an alternative test. At letter H he begins with “atrocity” and, in substance, discards it as a term which is not of assistance, and at letter E, he says, in perhaps somewhat muted terms:
I am however more persuaded by the idea of writing terrorism into the modern concept of the political crime.
Now that sounds like an exercise in statutory construction which your Honours may not think appropriate in relation to the Convention.
KIRBY J: Where is that? Is that on 771, is it?
MR BASTEN: I am so sorry, 772E. Because at the end of the day, we would say the assessment of terrorism may involve similar value judgments as the other terminology which is rejected.
KIRBY J: But the problem is that if you look at that as a general rule, as I understand it, the Republic of Ireland refused constantly to extradite IRA offenders to the United Kingdom on the basis that, to use the words of the United States/Israel extradition treaty at 770, it was regarded by the requested party as of a political character. This is the difficulty that, for the United Kingdom, the IRA personnel are terrorists but the succeeding governments of Ireland regarded them as political offenders. They chose to look after them themselves.
MR BASTEN: I suppose all one can say in response, your Honour, is that the development of a convention on terrorism, which has not been without its difficulties, but which is discussed in these speeches, is itself a response to that difficulty. It is not a difficulty which Australia is immune from either. I think I said yesterday that the terrorism convention excludes assassination of Heads of State. So does our Extradition Act, from the category of political offence. So that, we too, have had to deal with these difficult questions. One then, in fact, has a definition in our Extradition Act - perhaps it does not arise in this case, but one would think that a Tribunal might be able to consider the purpose of that legislative regime in considering how this Convention applies because there is undoubtedly legislative history which suggests the two were meant to mesh.
GLEESON CJ: Does it only restate the problem in the present case to ask whether, if the Government of India were trying to extradite the respondent to stand trial on a charge of conspiracy to murder this policeman, Australia would decline extradition on the ground that it was a political crime? Is that merely a restatement of the problem?
MR BASTEN: Your Honour, we would think not. Well, sorry, it is a restatement of the problem but I suppose the question is whether it is a statement which needs to be addressed in the context of the Refugees Convention, and there are two aspects to that, I suppose. One is that we do not know how India treats this particular activity. We have no information that this person is even wanted for the crimes in question. But if one goes to the passage in Schtraks Case which was cited with approval by Chief Justice Barwick in Ex parte Witness T 135 CLR 179 at 184, the test at 184 point 4, which his Lordship had espoused, said:
but if the central government stands apart and is concerned only to enforce the criminal law that has been violated by these contestants, I see no reason why fugitives should be protected by this country from its jurisdiction on the ground that they are political offenders.
In other words, it seeks to identify whether, in your Honour’s case, India could be expected to treat the person as an ordinary criminal who has committed the murder of a policeman, an offence under, no doubt, appropriate statute.
GLEESON CJ: Well, yes, the expression that is often used in contradistinction to “political offender” is a “common criminal” and, presumably, India could say, “This man is a common criminal. Do not tell us he is a politician”.
MR BASTEN: Yes. There was an extradition case, one of the few in which I think this exception has been used in England in recent years, of Khan where the Fijian Government sought to extradite a man who was believed to have been smuggling arms and explosives into Fiji a few years ago and they said they wanted to prosecute him for customs offences. Ultimately, the extradition was refused because it was not believed that they would be limited to that sort of activity. That is not a reported case though it is discussed in Jones book on extradition.
But one would need to be in a position to answer that sort of question, no doubt, if an extradition case arose and it is not a question which there is much material to assist with in the present circumstances. So I suppose, your Honour, we would say we would accept the restatement of the problem although, perhaps, saying that it may not have assisted the Tribunal in this case to have asked the question in that way simply because it did not have the material before it to assess it.
GLEESON CJ: One of the ways it was expressed in one of the judgments in Castioni was to ask whether the country seeking extradition was seeking to punish him for an offence of a political character.
MR BASTEN: That is so, yes. I would understand that theme to be consistent in more modern English and American extradition cases. Whether Castioni would be followed in the result it might be a different question.
KIRBY J: Can I ask you a question just before you leave T, and it is a rather awkward question? You will notice we dealt yesterday in argument, or you dealt with the Court’s concern about prior to his admission to that country as a refugee and in T it was recorded that that was conceded and you indicated that is a difference. Now, the respondent raises this in his arguments and what does the Court do if it gets to a point where it considers that a precondition to even considering paragraph (b)? You do not concede it. If it were a requirement of the Court’s dealing with the matter as a non‑theoretical question, is it a matter that you would concede or you simply do not concede it in this case?
It appears as if the Tribunal and the decision-maker have, in a sense, said, “Well, we will assume for the moment that you would be admitted to this country as a refugee and we will proceed with it on that basis”, but what does the Court do, there being no notice of contention that the matter being put squarely before us in argument, if it came to the view that that is a pre‑condition and as in England there should be a requirement of a concession?
MR BASTEN: Your Honour, if the Court were minded to deal with the matter in that form, we would not seek to take a technical objection that there has been no notice of contention. We see two difficulties with it. One is the proposition of law, which has not been debated in full, or at all, below, and that is this: there is nothing, we would think, in T which indicates that that approach was a necessary approach. Nor is there anything in T which demonstrates that findings that the Tribunal might have made in relation to that matter had any consequence for the outcome in relation to Article 1F.
Secondly, we say, and it is relevant in this regard - I think it was partly in this context that I took your Honours to Aguirre-Aguirre yesterday - that that is contrary to the approach which has been adopted in other countries including - Aguirre-Aguirre, from my experience, is quite rare; a unanimous opinion of the US Supreme Court with no concurring decisions and it has clearly adopted the position that it is not necessary ‑ ‑ ‑
McHUGH J: I do not think they are rare ‑ ‑ ‑
MR BASTEN: Perhaps not. I overstated perhaps.
McHUGH J: In fact, I read an article this morning which says that 29 per cent of their decisions are unanimous.
MR BASTEN: Whether that is recent opinions or not, I am not sure, your Honour. There are a lot of decisions which are dealt with without full reason. But your Honour is probably right and I should take that back. But there simply is an opinion of the court in 1999 which said that that approach was not necessary because the nature of the crime had to be assessed in its own context and one was not required to consider elements which might constitute persecution where it otherwise allowed to be treated as a refugee claim. The same approach, as I understand it, has been followed in the Canadian cases.
We gave your Honours copy of Gonzalez and Ramirez. In the New Zealand decision of S v Refugee Status Appeals Authority, which I have not taken your Honours to - it is at tab 15 in the bundle - and which deals in some detail, being a recent decision, with appellate authority elsewhere. Your Honours, I suppose there is one other factor which needs to be taken account of in the present case and that is our own legislative regime which I think noted in answer to your Honour Justice Kirby yesterday.
We have a regime which provides for separate elements of review depending upon whether the claimant has been dealt with under Article 1F or Article 1A of the Convention. As your Honours will appreciate, this particular case demonstrates that. It comes from the Administrative Appeals Tribunal which is the source of review provided by section 500, not from the Refugee Review Tribunal. So that there must, as it were, be separate decisions anticipated by the legislative regime of the Migration Act.
KIRBY J: Section 500 of the Migration Act remits these matters to the AAT.
MR BASTEN: That is so, subsection ‑ ‑ ‑
KIRBY J: What was the policy behind that? Can you suggest why that was done? I just do not quite understand it.
MR BASTEN: Your Honour, I would be speculating, I think, but one possible policy is the Administrative Appeals Tribunal deals with criminal cases generally, for example, deportation cases reviews go to the AAT, not to the Refugee Review Tribunal.
KIRBY J: Is there any difference in the formula for the link between the RRT and the Federal Court and the AAT and the Federal Court on the point of law question?
MR BASTEN: Yes.
KIRBY J: There is a difference in formula?
MR BASTEN: There is a difference because the appeal to the Federal Court from the AAT is prescribed by section 44 of the Administrative Appeals Tribunal Act which identifies an appeal on a question of law. It does not have either the spelling out in section 476(1) of the Migration Act of the grounds of review nor, for example, the spelling out in section 5 of the AD(JR) Act of grounds of review. It is simply on a question of law. But it might be added that it does not have the restrictions contained in section 476(3) of the Migration Act, subsections (3) and (4). So that, I am not sure whether anything arises from that in this case. It has not been suggested that the arguments being presented were otherwise than arguments involving questions of law.
KIRBY J: At some stage, I would be grateful if you would give us a reference to the most recent, and most helpful to the Court, authority on what a question of law is, in the context of statutory provisions such as those which you have just mentioned.
MR BASTEN: Yes, I should be able to do that off the top of my head. I am sorry, I cannot, your Honour. I might have to provide that reference later. I was going to deal in this context though, with two other authorities to which I think I referred briefly yesterday when your Honours raised with me this question of what I might call the arguments for the respondent, and there were two of them. One concerned the standard of proof which the Tribunal should adopt in dealing with these questions. May I simply note the reference?
In tab 5 of our bundle, Arquita v Minister for Immigration (2000) FCR 189, a judgment of Justice Weinberg, where at paragraphs 51 and following, his Honour deals, in some detail, with the test which is posited by the phrase “serious reasons for considering” and departs from a test that Justice Mathews had espoused in two cases referred to at paragraph 55. I do not seek to say any more about that one at the moment but in tab 4 we have included a copy of Ovcharuk v Minister (1998) 88 FCR 173, which does deal with the operation of Article 1F(b). It does so in a different context and it is one to which I need not take your Honours. I was going to note just two aspects of it.
Firstly, in Justice Whitlam’s judgment at page 178C, his Honour refers sufficiently, I think, for present purposes, to what is decided by Pushpanathan v Canada, although it was then unreported. I gave your Honours the reference earlier. There is some brief discussion of the Refugees Convention and the role of Article 33 on the following page, 179D to E. But in the judgment of Justice Sackville there is a discussion of the history to the Convention drafting of Article 1F(b) at pages 187 through to 191.
Just in relation to this question about the terminology which is adopted in the present formulation, namely, prior to admission to the country as a refugee, the history at the bottom of page 188G, where his Honour notes “The French representative” proposal, which talked, right at the bottom of the page, to “crimes committed before entry into the territory of the receiving country”, then at letter C on 189, to the “Yugoslav proposal” which talked about “crime under common law outside the country of reception”, which then, at letter D, the end of the paragraph, referred to support given by the Belgian representative to the French position, namely:
to give States the power to refuse refugee status to persons who had committed serious crimes before their admission to a receiving country.
The terminology, we would suggest, has changed, of course, into “admission as a refugee” and the term “receiving country” is no longer referred to. But the policy underlying the exception appears to be clear and the restriction which was perhaps suggested to us yesterday in opening, that one would take a more limited view of the role of 1F(b), would not be consistent with that statutory history.
KIRBY J: That is a little bit against you, is it not, because it rather suggests that you have to construe the exception in the context of a person who has already established a well‑grounded fear of persecution if that person returns to that person’s country and has, therefore, been admitted as a refugee? That is the way one would naturally read this exception, in the language that is used. This is a person who has been admitted and, yet, must be excluded because of a non‑political crime, and that non‑political crime must be read in the context of a person who has already suffered the horrors that warrant admission as a refugee and has been admitted.
MR BASTEN: Yes. I suppose the point I was seeking to - I accept that, read literally, that is the reading of the current terminology. What I was suggesting on the basis of the history was that that was not the intention and that the intention behind the exception was limited to, perhaps what I suggested yesterday, namely, the receipt of a person by a country where he or she was seeking refuge and that is what we understand to have been behind the various formulations discussed by Justice Sackville.
I suppose I should add that this, of course, was directly in point, in this case, where the question concerned drug offences which had been partly committed in Australia, partly outside, and your Honour will see that the Full Court of the Federal Court approved a passage from Justice French in Dhayakpa at page 177 E, where it is clear that his Honour took the same approach, his Honour says:
Nor, on the language of the Article or its evident policy, is it necessary that the disqualifying crime have any connection or reason for seeking refuge. A person who would otherwise qualify for admission as a refugee may be disqualified by the operation of Art 1F(b) if it were shown that such a person had a record of serious non-political criminal offences whether in the country of origin or elsewhere.
We would respectfully say there really is a uniformity of approach in relation to that question and, in the absence of some discussion in the courts below, this Court would not seek to take a different approach.
Might I then turn, in conclusion, to the particular judgment under appeal, and I do not wish to repeat what we have said in our written submissions, but it comes back to the question which your Honour the Chief Justice identified this morning, I think, which was whether or not there was indeed an error of law which had been - or it might have been your Honour Justice Kirby - committed in this case.
Our complaint is at paragraph 26 in the judgment of the Full Court at page 296 of the appeal book where their Honours said at the beginning that their view was that the primary judge had been correct in his analysis. I took your Honours to that yesterday. I do not repeat it. They then continue at line 34:
It was insufficient ‑
this is presumably on the part of the Tribunal ‑
particularly, to reach that conclusion merely on the basis that the murder was a “revenge” killing.
Their Honours then go on to make three propositions. Firstly:
If there is a political struggle in which agents of the government, including police, have a policy of torturing and killing those who oppose the government, we see no reason why crimes directed at those agents, or police officers, may not be regarded as political (that is, as satisfying the “incident” test) even though they may be characterised as crimes of revenge.
That, with respect, we would not demur from, but it does not suggest that they must be treated, regarded as political, even though they are characterised as crimes of revenge. That would have been the test which the court should have applied. They then say:
It is, of course, necessary to look at the circumstances of the particular crime in order to decide whether there are serious reasons to believe that it cannot be characterised as political.
The test the court should have applied was to ask whether it can be characterised as non-political, and if it can, then there is no error of law. They continue:
It is necessary also, of course, to consider whether the crime has characteristics which, notwithstanding “incidence”, require it to be regarded as non-political.
We would, with respect, say allow it to be required as non-political would have been the correct test. Their Honours then take two further steps which, with respect, need to be identified. Your Honours will recall, and perhaps I can take your Honours to page 263, that the Tribunal and Justice Mansfield dealt carefully with three separate basis upon which the respondent could be said to have committed serious non-political crimes. The second basis at line 53 on page 263 was that:
The applicant has on other occasions knowingly participated in the commission of similar acts –
GAUDRON J: Particularly at that area that I wish to know upon what evidence, and you can give me a note later if you like. That was just, what, on the basis that he as a member of the KLF and the KLF had done other things?
MR BASTEN: I think it went further than that, your Honour, but could I deal with it that - your Honour invites me to give the Court a note. I am certainly content to deal with that if that is appropriate.
GAUDRON J: Again, I will find all of the evidence, I take it, in what was said in the application.
MR BASTEN: The application, no. His application for a protection visa?
GAUDRON J: Yes, in his application for a protection visa. The evidence against him, as it were.
MR BASTEN: No, it was dealt with in some detail in a record of interview with the Delegate, which I will need to take your Honour to as well. It is partly there though, I agree, yes.
GAUDRON J: It is what is known about the KLF?
MR BASTEN: No, and your Honour I can only give your Honours part of the information about that. The information which was before the Tribunal included a lot of material which was never put before the Federal Court and which is not before your Honours. Your Honour will see from the index that there are a lot of materials in relation to the objective circumstances in India concerning the KLF which is simply not reproduced, but I can answer your question on the basis of the material which your Honours do have, if that is convenient.
GAUDRON J: Ultimately it has to be answered on the basis of the material before the AAT, does it not?
MR BASTEN: Yes. Well one would think so, your Honour.
GAUDRON J: I must say that in these circumstances I do not find the situation very satisfactory, because from my point of view one has to be satisfied that there was material before the Tribunal of such a kind that a reasonable person could conclude that this person was involved in serious non‑political crimes, and it is this person, not the KLF, this person I think, who has to be the focus of the test.
MR BASTEN: Yes, I do not depart from that. I said something I think yesterday in relation to that.
GLEESON CJ: I am looking at page 254 of the appeal book. This matter went from the Tribunal to the Federal Court on the basis of questions of law, is that right?
MR BASTEN: Yes, your Honour.
GLEESON CJ: The questions of law are those numbered (1) and (2) appearing on page 254, lines 20 to 30.
MR BASTEN: Yes.
GLEESON CJ: That seems to rather limit the inquiry, and would explain why a whole lot of material that was before the Tribunal was not before the court.
MR BASTEN: It does, your Honour.
GAUDRON J: Ground (1) is wide.
MR BASTEN: It is wide in its terms. The question is how it was dealt with by the Federal Court. It has been particularised to some extent. What I was going to say was that either we would request an opportunity to put all of the material before this Court, or else we would invite your Honours not to address an issue which was raised on a limited basis on the material which was only part of the material before the Tribunal. We would prefer to take the latter course, and simply answer your Honour’s question on the basis of the material before this Court, and identify that that would be a problem with this Court inquiring further. I appreciate your Honour Justice Gaudron may not think that was an entirely satisfactory conclusion.
GAUDRON J: No, well I certainly do not think the case can be approached in the context of an error of law on the basis that you said the applicant did not put up a very convincing case. I mean, one aspect of this has to be whether there was a convincing case before the Tribunal, not whether he put up a convincing case, it seems to me. I would have thought it was encompassed in ground (1).
MR BASTEN: Your Honour, I think we cannot assist your Honour with precisely how the case was argued, but we would approach it on the basis that Justice Mansfield dismissed the appeal. Presumably his Honour addressed each of the grounds which might have brought about a different result which was argued before him. Since he dismissed the appeal, we would think that it was appropriate to deal with it on the basis that the grounds argued were those which his Honour deal with. I cannot take that matter any further. If your Honour wished to have all the material that was before the Tribunal in order to deal with it on this basis, we would be happy to supply it.
GAUDRON J: It may not be necessary, but a question might emerge whether, at least from my point of view, the appropriate order would be to withdraw special leave.
MR BASTEN: Yes. Well, I understand the way that your Honour is putting it and I can understand why your Honour might take that view in those circumstances and I do not wish to be heard further in relation to that.
May I simply complete the analysis I was seeking to make of the Full Court’s judgment. I think I had noted that at page 263 the Tribunal had identified and made findings in relation to three different sets of activity, each of which was dealt with separately by Justice Mansfield, and in relation to item 2 on page 263 at line 52 his Honour had taken the view that the Tribunal’s approach was infected with the error in relation to the first matter, the killing of the police officer. His honour held, however, that the weapons and explosives category was not so infected.
In the judgment of the Full Court it is necessary to note that their Honours dealt with it somewhat differently. At paragraph 27 at the bottom of page 296 they say that:
His Honour held, in relation to the other crimes to which the appellant was implicated, that the Tribunal had correctly applied the test, as propounded by Lord Lloyd in T, in concluding that some of them at least were non-political.
Their Honours say at paragraph 28:
The Tribunal gave, in substance, two reasons for its conclusion.
This appears to be running together the two separate sets of findings made by the Tribunal in relation to paragraphs 2 and 3. At paragraph 30, halfway down page 297, their Honours set out what they identify as “the second aspect of the Tribunal’s reasons”, which is the passage in relation to the involvement with supply of weapons and explosives “to hit any target”. They do not expressly demur from the way the primary judge dealt with this matter but they treat it as part, as we would apprehend it, of the question of other crimes generally. That was not the way the trial judge had dealt with it and what, in effect, their Honours do at page 298 is to say that the Tribunal could not have reached its conclusion in relation to that without considering other matters. Our proposition in relation to that is simply that there was no obligation on the Tribunal to make the further inquiries suggested there, and that it was entitled to reach the conclusion it did on the material before it.
GAUDRON J: That might be the point which is disturbing me.
MR BASTEN: Yes, I was going to come back to that and say that is ultimately the point on which the Full Court departed from the approach taken by the trial judge and it was on that point that your Honour’s concern might have arisen.
GAUDRON J: You see, the Full Court does deal with what I have been calling the insufficiency of evidence or insufficiently of material.
MR BASTEN: That is so in relation to the finding in relation to that third point, yes.
GLEESON CJ: How did the Full Court deal with the fact that it did not have before it all the material that the Tribunal had?
MR BASTEN: As I understand it, your Honour, the Full Court is, in effect, saying that the Tribunal could not have reached a conclusion without making a finding about the nature of the targets. That seems to be the approach, in other words, it was an error for the Tribunal to make any finding as to whether Article 1F(1)(b) applied in relation to the explosives and weapons offences activities without being able to identify whether the targets were uninvolved citizens or political targets, and whether the crimes were directed towards the attainment of political goals, that is at lines 15 to 20 on page 298.
GLEESON CJ: It seems to be a point about insufficiency of reasons.
MR BASTEN: Yes, that is so. I am not sure that they are saying – their Honours refer to the fact that there was some information in the documents before the Tribunal at line 29, and then merely say that the Tribunal did not, as it were, deal with it adequately in ‑ ‑ ‑
GLEESON CJ: Or a failure to take account of a relevant consideration. That is page 298, line 15.
MR BASTEN: Yes, that is so. I think that was how it was put, but that only arose from the fact that the reasons did not articulate any further. The The word “laconic”, I think, was the word accepted.
GAUDRON J: The failure to articulate suggests to me that the Tribunal did not understand what it was doing in relation to any three of them. There really was assuming, as you put in argument, that because the applicant had not made a convincing case they could find serious reasons for considering, which is what you put in argument at the beginning of your submissions yesterday, and which I do not think you any longer support.
MR BASTEN: I am not sure whether I put it in terms of an onus of establishing. As we would understand it, the Tribunal undertook, in effect, a three-stage process.
GAUDRON J: On ordinary considerations, it being an exception to the refugee application, as it were, you would think there was an onus on someone to identify the material which leads to that conclusion and to give that person an opportunity to answer it. Now, I know we are not in that territory, but ‑ ‑ ‑
MR BASTEN: I accept the way your Honour puts it to me.
GAUDRON J: Because that does not seem to have emerged clearly, it seems to me the Tribunal might not have understood really what its onus and role was in this regard.
McHUGH J: No, it took two steps. It did not jump straight to the conclusion. First of all, it said:
it can only be characterised as an act of revenge –
And then it said there was:
no nexus or proportionality or close or direct causal link . . . political objectives of the KLF.
MR GERKENS: But then in paragraph 41 it specifically says that finding:
alleviates the necessity to enquire into the political nature or otherwise –
So, it admits that it did not inquire into the political nature or otherwise of the KLF.
KIRBY J: Your argument might be good or bad but I think you have put it.
MR GERKENS: I accept that, your Honour.
KIRBY J: The key to it is the word “accordingly”.
MR GERKENS: I agree, your Honour. The word “accordingly” is extremely important. If I could then just move on lastly to your Honour Justice Callinan, your Honour has raised on a number of occasions the idea of murder being incapable of being a political crime. I would submit that that is really not in accordance with the authorities in that if you go to Lord Mustill’s decision in T, at page 759E his Honour says:
It is evident from the literature, which I need not cite, that the rather puzzling expression “un crime de droit commum,” often rendered as “common crime,” has nothing to do with the common law, but is equivalent to “ordinary crime,” or conduct recognised as criminal by the common consent of nations. Murder is a common crime; treason is not.
CALLINAN J: But that is not the question. The question is, ultimately, whether it is a serious non‑political crime.
MR GERKENS: Yes, your Honour.
CALLINAN J: Whether it is a common crime or not does not resolve that question.
MR GERKENS: No, your Honour. What I am suggesting is that is persuasive and you need to go further into his Honour’s judgment at page 762E under 3:
The depoliticising of crimes
The first response to the problem was to define the boundaries of the political exception by ignoring its intellectual basis and by listing those offences which, without any regard to the factors which would otherwise be material, were not for the purposes of extradition to be exempt. In the language of the text‑writers, these offences would be “depoliticised.” A series of international conventions has steadily enlarged this list, so that it embraces genocide, torture, the taking of hostages, crimes against internationally protected persons and attacks on and acts compromising the safety of aircraft, aerodromes, ships and marine installations; and these specific instances have been the subject of legislation in the United Kingdom which it is unnecessary to rehearse. Of particular importance, however, is the European Convention on the Suppression of Terrorism (1977), to which effect was given in the United Kingdom by the Suppression of Terrorism Act 1978, now re‑enacted with enlargements by the Extradition Act 1989. The former Act not only extended (as between the states party to the Convention) the list of extradition crimes but also contained in Schedule 1 a list (now carried into the Act of 1989) of offences which were not to count as political. These offences currently include murder, manslaughter, offences against the person, and causing explosions likely to endanger life or property. Thus, if the appellant’s activities had taken place within the territory of a European participating state (or in the United States, to which the Convention and the statute have been extended), the anxious and difficult questions raised by this appeal would not have arisen.
So what his Honour was really saying there is that murder is a crime which can be considered as political, certainly in extradition terms, but that there has been a tendency to remove it from that category by way of legislation.
CALLINAN J: Do any of their Lordships agree with what Lord Mustill said?
MR GERKENS: Not specifically, your Honour. I would have to say it is obiter. I would go to Lord Lloyd’s definition at 787. I will not read the whole definition but on 787, the last full sentence which commences the fourth line down:
In determining whether such a link exists, the court will bear in mind the means used to achieve the political end, and will have particular regard to whether the crime was aimed at a military or governmental target, on the one hand, or a civilian target on the other, and in either event whether it was likely to involve the indiscriminate killing or injuring of members of the public.
So, I would suggest that by inference his Honour there is not ruling out murder of combatants; rather, they are ruling out murder of uninvolved innocent passers‑by. Now, I would accept that the proportionality test which seems to have found favour in the United States could be used to determine that murder was disproportionate to the political object but the problem in this case is that proportionality involves weighing the crime against the political object, and it is my submission that the Tribunal did not do this in this particular case. Unless your Honours have any further questions, I have no further material to put to your Honours.
GLEESON CJ: Thank you, Mr Gerkens. Yes, Mr Basten.
MR BASTEN: Might I simply say two things, your Honour. In relation to the contention point, if paragraph 6.2 of our submissions is the peg on which the respondent seeks to hang that argument, with respect, it will not bear the weight. That was simply a statement of a background legal principle which, as we understood it, had no immediate application in the case and is not dealt with in the part of our submissions which deal with the application of the principles.
Might I simply, in response to your Honour Justice Kirby’s questions of this morning, say that so far as the question of law issue has been considered, we do not understand that this Court has given any serious or detailed consideration to it since Collector of Customs v Agfa‑Gevaert (1986) CLR 389. There was some discussion in Vetter v Lake Macquarie City Council [2001] HCA 12. Your Honours may recall that concerned the workers compensation legislation of New South Wales. The Full Court of the Federal Court has recently given it consideration in Industry Research & Development Board v Bridgestone Australia Limited [2001] FCA 954, a judgment of 23 July of this year which I should have recalled. The passage is in the judgment of Justice Lindgren at paragraphs 49 to 62.
GLEESON CJ: Thank you, Mr Basten. We will reserve our decision in this matter.
AT 3.01 PM THE MATTER WAS ADJOURNED
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